Delhi High Court
Nidhi Malik vs Sh. Alapan Bandyopadhyay on 12 October, 2021
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on:12.10.2021
+ CONT.CAS(C) 293/2021
NIDHI MALIK .... Petitioner
Through: Mr. Zoheb Hossain, Mr. Ashutosh Ghade
and Mr. Vivek Gumani, Advocates.
Versus
SH. ALAPAN BANDYOPADHYAY .....Respondent
Through: Ms. Madhumita Bhattacharjee, Advocate.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J.
1. This contempt petition has been filed by the petitioner under Sections
11 and 12 of the Contempt of Courts Act, 1971 read with Article 215 of the
Constitution of India, 1949, seeking, inter alia, the following reliefs:-
"(i) Initiate contempt proceedings against the alleged
contemnor for willfully and deliberately disobeying the
judgment and Order dated 06.01.2021 of this Hon'ble Court
passed in the W.P.(C) No.10874 of 2020 and further direct the
Respondent to pass a fresh order in compliance of the said
Order;"
2. The learned counsel for the petitioner submits that the order dated
06.01.2021 passed by the Division Bench in W.P.(C) No. 10874/2020 leaves
no scope for the State of West Bengal to consider the matter on merits but to
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issue a release order in view of the two orders as mentioned by the Division
Bench in its aforesaid order, which is reproduced as under:
"...Present writ petition has been filed with the following prayer:
"1. Allow the present Petition and pass an appropriate writ,
order or direction to set aside the impugned Order dated
01.12.2020 passed by the Ld. Central Administrative, Principal
bench, New Delhi in MA/100/2252/2020;
2. Consequently, direct that the prayer (s) made in the Original
Application of the Petitioner as filed before the Ld. CAT,
Principal bench, New Delhi be allowed;
3. Consequently, direct the Respondent no. 1 to grant No
objection/approval to the Petitioner for transfer of her cadre
from West Bengal cadre to AGMUT Cadre and accordingly
direct for passing of relieving orders in favour of the petitioner in
a time bound manner;
4. Any other relief which this Hon‟ble Court may deem fit in the
interest of justice."
2. However, after some arguments, learned counsel for petitioner
confines his prayer to prayer (ii) made in the OA filed along with
M.A.No. 100/2252/2020. The said prayer clause is reproduced
hereinbelow:-
(ii.) In the alternative, issue an appropriate order directing the
Respondent no. 2 to act on the Application of the Applicant dated
10.08.2020 (Annexure A-18) and grant consent/letter of No
objection and consequential relieving order for the Transfer of
cadre of the Applicant from West Bengal cadre to AGMUT
Cadre;
3. Issue notice.
4. Mr. Vijay Joshi, Advocate accepts notice on behalf of
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respondent No. 1 and Ms. Madhumita Bhattarcharjee, Advocate
accepts notice on behalf of respondent No. 2.
5. They state that in view of the limited prayer now sought before
this Court, they do not wish to file any counter affidavit.
6. It is pertinent to mention that the Tribunal by way of the
impugned order has dismissed the petitioner‟s O.A. on the
ground of delay as far as challenge to order dated 25th May,
2016 of the respondent No.2 is concerned. However, the
petitioner had been given liberty to pursue her fresh application
seeking transfer of the cadre.
7. Keeping in view the aforesaid, the present writ petition is
disposed of with a direction to the respondent No. 2 to decide the
petitioner‟s second representation dated 10th August, 2020
within eight weeks in accordance with the order dated 06th
November, 2019 passed by the Central Administrative Tribunal
(CAT), Principal Bench in O.A.3863/2018 as well as order dated
04th December, 2020 passed by the Central Administrative
Tribunal (CAT), Principal Bench in O.A. No.3579/2019 and the
judgment and order dated 03rd February, 2020 passed by this
Court in W.P.(C) No. 13444/2020.
8. It is clarified that the dismissal of the petitioner‟s O.A. on the
ground of limitation shall not come in the way of disposal of the
petitioner‟s second representation dated 10th August, 2020.
Accordingly, the respondents are directed to decide the
petitioner‟s second representation uninfluenced by the impugned
order passed by the CAT..."
3. The order dated 03.02.2020 passed in W.P.(C) No. 13444/2019, as
mentioned by the Division Bench in the aforesaid order, granted the
following reliefs:
"...13.Counsel for the State of West Bengal now submits that a
„No Objection‟ cannot be granted in view of certain proceedings
pending before the Calcutta High Court. With the highest regard
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for the Calcutta High Court and with full deference to the comity
of courts, we have queried counsel for the State of West Bengal
to point out any order where the Calcutta High Court has
restrained the transfer of the petitioner; or by which the
petitioner has been ordered to remain present in court; or any
order to even show that the petitioner‟s presence is necessary in
West Bengal for the proceedings pending in court. No such order
or direction or requirement has been brought to our notice.
14. Some portions of the report have been pointed out to this
court, according to which, on account of the incident which took
place in the Howrah Court in Kolkata, the Police had to enter the
court premises and order firing of tear gas shells. It is not for us
to go into the merits of the incident except to say, as Mr Rao
points out, that the petitioner who was the Additional Deputy
Commissioner was only performing her lawful duties; that the
petitioner was the junior most amongst the officers present at the
relevant time when tear gas was deployed since it was perceived
that if timely action was not taken, it could have caused loss of
life and property since the law and order situation was extremely
volatile and the atmosphere was highly intimidating.
15. The petitioner, who is present in court, submits that if any
direction is issued by the Calcutta High Court requiring her
presence in relation to the incident, she would obey and comply
with the same. However, it is prayed that on account of the
couple having been forced to live apart for two and a half years,
serious harm is being caused to their personal life, has also
suffered a miscarriage.
16. In view of the above, we dispose of this petition directing that
the petitioner be relieved within two weeks from the date of
receipt of this order..."
4. Subsequently, another Division Bench of this Court on 28.05.2021 in
W.P.(C) No. 4048/2021 (State Of West Bengal v. Gandharva Rathore &
Ors.) also issued similar directions, inter alia, as under:
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"...2. The State of West Bengal impugns the order dated 04th
December, 2020 of the Central Administrative Tribunal (CAT),
Principal Bench, New Delhi, allowing OA No.3579/2019
preferred by the respondent no.1 impugning non-grant of No
Objection Certificate (NOC) for change of her cadre in the
Indian Administrative Service (IAS) from West-Bengal to
Himachal Pradesh, to an officer of which cadre the respondent
no. 1 has been married. By way of the impugned order, the
petitioner has been directed to issue NOC/consent for cadre
transfer of the respondent No. 1 from the State of West Bengal to
Himachal Pradesh.
3. On the last date of hearing, learned counsel for the petitioner
had prayed for some time to obtain instructions. Though it was
made clear that no adjournment would be granted today, yet
learned counsel for the petitioner states that due to cyclone
'Yaas', it has not been possible to obtain instructions.
4. However, the request for adjournment is opposed by learned
senior counsel for the respondent No.l on the ground that the
cyclone has not affected the State Secretariat situated at Kolkata
and even after the last date of hearing, some officials have been
transferred.
5. Keeping in view the aforesaid as well as the fact that sufficient
opportunities have been granted to the petitioner to obtain
instructions, the prayer for adjournment is declined and the
matter is taken up forbearing.
6. Learned counsel for the petitioner states that there is an
extreme shortage of officers as a number of officers have sought
transfer from the West Bengal cadre on account of their
marriage to officers belonging to other State cadres.
7. However, a perusal of the paper book reveals that the issue
raised by the petitioner in the present ease is no longer res
integra and the same stands decided against the petitioner by
way of the following three Division Bench judgments:-
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(1) Bhavna Gupta vs. The Union of India & Ors.,
W.P.(C)No.13444/2019. The relevant portion of the same is
reproduced herein below:-
"11. Reading of the above-cited Government Policy leaves no
room for doubt that the same would apply to the petitioner. The
petitioner waited patiently for two years after making her first
representation to the State of West Bengal; and only after having
received no response did she approach the Tribunal. The
Tribunal granted six weeks time to the State of West Bengal to
consider the petitioner's representation; however no response
has yet been received to that representation.
xxx xxx xxx
13. Counsel for the State of West Bengal now submits that a 'No
Objection‟ cannot be granted in view of certain proceedings
pending before the Calcutta High Court. With the highest regard
for the Calcutta High Court and with full deference to the comity
of courts, we have queried counsel for the State of West Bengal
to point-out any order where the Calcutta High Court has
restrained the transfer of the petitioner; or by which the
petitioner has been ordered to remain present in court; or any
order to even show that the petitioner's presence is necessary in
West Bengal for the proceedings pending in court. No such order
or direction or requirement has been brought to our notice.
xxx xxx xxx
16. In view of the above, we dispose of this petition directing that
the petitioner be relieved within two weeks from the date of
receipt of this order."
(2) Ms. Loganayagi Divya Vs. Union of India & Ors., WP(C)
No.3927/2020. The relevant portion of the same is reproduced
hereinbelow:-
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"4. In our view, there can be absolutely no justification for the
State of West Bengal not relieving the petitioner to enable her to
join the IPS Cadre in the State of Odisha. This shows complete
apathy on the part of the State of West Bengal - which cannot be
countenanced. We are left with no alternative, but to issue
directions to enable the petitioner to join her post in the IPS
Cadre in the State of Odisha.
5. Accordingly, we declare that the petitioner stands forthwith
relieved from her post in the IPS Cadre of the State of West
Bengal. No further orders would be required to be passed by the
State of West Bengal in this regard. We direct the State of Odisha
to treat this order as a relieving order of the petitioner to enable
her to join her post in the IPS Cadre in the State of Odisha."
(3) The State of West Bengal vs. Raj Karan Nayyar & Anr.,
WP(C) No. 11966/2018. The relevant portion of the same is
reproduced hereinbelow:-
"Considering the overall circumstance, we grant time to the
petitioner up to 28.02.2019 to relieve the respondent No. 1 so
that he can join his services with the State of U.P. It is made
clear that no further extension shall be sought or granted and, in
case, no express order is passed relieving the respondent No.l
from his services by the State of West Bengal, he shall be deemed
to have been relieved on 28.02.2019and it shall be open to him to
join the services with the State of UP."
8. Keeping in view the aforesaid mandate of law, the present writ
petition is dismissed and the State of West Bengal is directed to
relieve the respondent no. l within eight weeks. In the event, the
respondent no.1 is not relieved within the aforesaid stipulated
period, she shall be deemed to have been relieved by virtue of the
order of this Court..."
(emphasis supplied)
5. SLP No.7986/2021 preferred by the State of West Bengal against the
aforesaid order dated 28.05.2021 passed by the Division Bench of this court
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was dismissed by the Supreme Court on 16.07.2021 (Annexure-A2 page
262).
6. The learned counsel for the petitioner further relies upon judgments of
the Supreme Court which have held inter alia as under: -
(a) Kshiti Goswami and Others vs. Subrata Kundu and Others (2013)
11 SCC 618:-
"11. ......He made strenuous effort to persuade us to take the view
in exercise of contempt jurisdiction the High Court cannot issue
direction for implementation of the order, violation of which led
to the initiation of the contempt proceedings, but we have not felt
persuaded to agree with him. Rather, we are in complete
agreement with the High Court that one of the objects of the
contempt jurisdiction which is exercised by the High Court under
Article 215 of the Constitution read with the Contempt of Courts
Act, 1971 is to ensure faithful implementation of the direction
given by it. This is precisely what the Division Bench of the High
Court has done in this case. Therefore, we do not find any valid
ground or justification to entertain the petitioners' challenge to
the impugned order....."
(b) Maninderjit Singh Bitta vs. Union Of India And Others (2012) 1
Supreme Court Cases 273:
"20. In exercise of its contempt jurisdiction, the courts are
primarily concerned with enquiring whether the contemnor is
guilty of intentional and wilful violation of the orders of the
court, even to constitute a civil contempt. Every party to lis
before the court, and even otherwise, is expected to obey the
orders of the court in its true spirit and substance. Every person,
is required to respect and obey the orders of the court with due
dignity for the institution. The government departments are no
exception to it. The departments or instrumentalities of the State
must act expeditiously as per orders of the court and if such
orders postulate any schedule, then it must be adhered to.
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Whenever there are obstructions or difficulties in compliance
with the orders of the court, least that is expected of the
government department or its functionaries is to approach the
court for extension of time or clarifications, if called for. But,
where the party neither obeys the orders of the court nor
approaches the court making appropriate prayers for extension
of time or variation of order, the only possible inference in law is
that such party disobeys the orders of the court. In other words,
it is intentionally not carrying out the orders of the court.
Flagrant violation of the court's orders would reflect the attitude
of the party concerned to undermine the authority of the courts,
its dignity and the administration of justice.
21. In Vinay Chandra Mishra, (1995) 2 SCC 584, this Court held
that: (SCC p. 617, para 39)
"39. ... judiciary has a special and additional duty to perform viz.
to oversee that all individuals and institutions including the
executive and the legislature act within the framework of not only
the law but also the fundamental law of the land. This duty is
apart from the function of adjudicating the disputes between the
parties which is essential to peaceful and orderly development of
the society. ... dignity and authority of the courts have to be
respected and protected at all costs."
22. Another very important aspect even of the civil contempt is,
"what is the attribution of the contemnor?" There may be cases
of disobedience where the respondent commits acts and deeds
leading to actual disobedience of the orders of the court. Such
contemnor may flout the orders of the court openly, intentionally
and with no respect for the rule of law. While in some other cases
of civil contempt, disobedience is the consequence or inference of
a dormant or passive behaviour on the part of the contemnor.
Such would be the case where the contemnor does not take steps
and just remains unmoved by the directions of the court. As such,
even in cases where no positive/active role is directly attributable
to a person, still, his passive and dormant attitude of inaction
may result in violation of the orders of the court and may render
him liable for an action of contempt.
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xxx xxx xxx
26. It is also of some relevance to note that disobedience of court
orders by positive or active contribution or non-obedience by a
passive and dormant conduct leads to the same result.
Disobedience of orders of the court strikes at the very root of the
rule of law on which the judicial system rests. The rule of law is
the foundation of a democratic society. Judiciary is the guardian
of the rule of law. If the judiciary is to perform its duties and
functions effectively and remain true to the spirit with which they
are sacredly entrusted, the dignity and authority of the courts
have to be respected and protected at all costs (refer T.N.
Godavarnam Thirumulpad (102) v. Ashok Khot (2006) 5 SCC 1,
SCC p. 6, para 5). The proceedings before the highest court of
the land in a public interest litigation, attain even more
significance. These are the cases which come up for hearing
before the court on a grievance raised by the public at large or
public-spirited persons. The State itself places matters before the
Court for determination which would fall, statutorily or
otherwise, in the domain of the executive authority.
27. It is where the State and its instrumentalities have failed to
discharge its statutory functions or have acted adversely to the
larger public interest that the courts are called upon to interfere
in exercise of their extraordinary jurisdiction to ensure
maintenance of the rule of law. These are the cases which have
impact in rem or on larger section of the society and not in
personam simpliciter. Courts are called upon to exercise
jurisdiction with twin objects in mind. Firstly, to punish the
persons who have disobeyed or not carried out orders of the
court i.e. for their past conduct. Secondly, to pass such orders,
including imprisonment and use the contempt jurisdiction as a
tool for compliance with its orders in future. This principle has
been applied in the United States and Australia as well.
28. For execution of the orders of the court even committal for an
indefinite term has been accepted under Australian law
[Australasian Meat Industry Employees' Union v. Mudginberri
Station (Pty) Ltd.10] and American law, though this is no longer
permissible under English law. While referring to detention of a
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person for a long period to ensure execution of the orders in
Nevitt, In re, 117 F448 (1902) at p. 461, Sanborn, J. observed
that the person subjected to such a term "carries the keys of his
prison in his own pocket".
29. Lethargy, ignorance, official delays and absence of
motivation can hardly be offered as any defence in an action for
contempt. Inordinate delay in complying with the orders of the
courts has also received judicial criticism. It is inappropriate for
the parties concerned to keep the execution of the court's orders
in abeyance for an inordinate period. Inaction or even dormant
behaviour by the officers in the. highest echelons in the hierarchy
of the Government in complying with the directions/orders of this
Court certainly amounts to disobedience. Inordinate delay of
years in complying with the orders of the court or in complying
with the directed stipulations within the prescribed time, has
been viewed by this Court seriously and held to be the contempt
of court, as it undermines the dignity of the court. Reference in
this regard can be made to Maniyeri Madhavan v. Inspector
ofPolice12 and Anil Ratan Sarkar v. Hirak Ghosh13. Even a
lackadaisical attitude, which itself may not be deliberate or
wilful, have not been held to be a sufficient ground of defence in
a contempt proceeding. Obviously, the purpose is to ensure
compliance with the orders of the court at the earliest and within
stipulated period."
7. The learned counsel for the respondent has refuted the aforesaid
contentions primarily on the following grounds:
(i) that no contempt is made out because the order dated
06.01.2021 in W.P.(C) No. 10874/2020 passed by the Division
Bench of this Court, directing the State of West Bengal to take
a decision within four weeks, has already been complied with,
and it would now be open to the petitioner to pursue her
remedies as may be available to her in law, in case she is
aggrieved by the said decision;
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(ii) that the Division Bench order does not direct the State to
necessarily relieve her from the West Bengal cadre but to
consider her representation; the same has been considered, and
an order has been passed on 22.02.2021 by the DoPT. A
subsequent order was passed by the State Government on
20.07.2021, declining the relief sought by the petitioner on the
ground that there was acute shortage of IAS Officers in the
State. Furthermore, because of the pandemic the State
administrative machinery was already stretched, therefore, the
State was not in a position to relieve the petitioner from the
administrative set up.
(iii) The learned counsel for the respondent further submitted that
the petitioner is bound by the doctrine of aprobate and
reprobate, whereby once she has taken the benefit of her
matrimonial case being HMA No.148/2018 pending before the
Court of the Principal Judge, Family Court, Patiala House
Courts, New Delhi, transferred to the Family Court,
Krishnanagar, West Bengal, for her own convenience,
therefore, she is now estopped from denying the validity of the
binding effect of the same; it shows that she intended to stay
and serve in West Bengal.
8. The learned counsel for the respondent also referred to the decision of
the Supreme Court in Special Leave Petition No.36717/2017(Namrata
Verma vs. The State of Uttar Pradesh and Others) in which on 06.09.2021
the Supreme Court held that "...It is not for the employee to insist to transfer
him/her and/or not to transfer him/her at a particular place. It is for the
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employer to transfer an employee considering the requirement..."
9. The respondent states that dismissal of MA No.2252/2020 by the
Central Administrative Tribunal (CAT), Principal Bench, New Delhi, vide
its order dated 01.12.2020 was because of a delay of 3½ years.
10. In the first instance, the court would note that it is not in dispute that
the Government of India has given the 'NoC' for cadre transfer from the
AGMUT Cadre way back in June, 2015 and it was so averred in the OA
filed before the Central Administrative Tribunal ('CAT'). Furthermore, the
DoPT, Government of India has written to the State of West Bengal for
inter-cadre transfer of the petitioner in terms of the above NoC. Therefore,
the willingness of the recipient/ receiving Department is clear; once the
officer is released from West Bengal, she will join another cadre with the
concurrence of the Union of India.
11. The learned counsel for the respondent, referring to Rule 5(2) of the
Indian Administrative Service (Cadre) Rules, 1954, submits that the change
can only be done, with the consent of the State Government concerned.
12. This contention is promptly refuted by the learned counsel for the
petitioner who submits that the issue is no more res integra. Indeed in the
judgment cited hereinabove, the Supreme Court has clearly dealt with the
issue of inter-cadre transfer and held that on account of family exigency,
inter-cadre transfer would be allowed.
13. On 28.05.2021, this Court had passed the following order:-
"...1. The learned counsel for the petitioner submits that the
spirit of the order dated 06.01.2021 passed by a Division Bench
of this in WP(C)10874/2020 has to be respected and adhered to,
therefore the respondent may review and reconsider the
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petitioner's case, especially in view of the fact that the petitioner
and her husband - who also is a government servant, have been
living separately for more than four years. They and their
children have not lived together as a family for that duration.
The children are in school, they need equal and constant
guidance of both parents. He submits that interactions through
video mode or the telephone, can never replace the reassurance
and confidence a child get by the mere presence of both parents
under the same roof. It adds to their healthy emotional growth.
The learned counsel emphasizes that the rights of the children
are a fundamental issue and ought to be amongst the foremost
factors to be considered by the government.
2. The learned counsel for the petitioner further submits that
similarly situated government servants have been granted relief.
Therefore, the petitioner would once again request the State of
West Bengal to look into the issue favourably.
3. The learned counsel for the State of West Bengal seeks and is
granted three weeks' time to file an affidavit with better
particulars, particularly in terms of the of the Division Bench.
4. List on 13.07.2021..."
14. Further, on 13.07.2021, this Court passed the following order:
"...1. Reply has not been filed by the respondent, despite
acceptance of notice on 24.3.2021 and further time having been
and time having been granted on 28thMay 2021 for filing a reply.
The right to file a reply on behalf of the respondent stands
closed.
2. The learned counsel for the petitioner submits that in an
identical matter being W.P.(C) No.9793/2019, a Division Bench
of this Court on 13.09.2019 directed, inter alia as under:
"...10... and if for any reason this order is not complied with,
respondent no. 1 shall stand relieved from the IPS cadre of the
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State of West Bengal w.e.f. 01.11.2019 and shall join the services
of the Rajasthan Cadre... "
3. The Court has noted that the petitioner has been making
persistent endeavours to save her matrimony and to secure for
her school-going children and for herself a complete family unit
-- with both parents under one roof. The children have been
deprived of their father's affection, who is posted in Delhi, while
the petitioner and the children live in the State of West Bengal.
4. The learned counsel for respondent submits that a divorce
petition was filed by the husband and it is not known if the
marriage still subsists. The learned counsel for the petitioner
submits that the marriage subsists. Referring to pdf page 141, he
further submits that in the OA filed before the Central
Administrative Tribunal, Principal Bench, Delhi ('CAT'), the
petitioner inter alia has duly disclosed in para (B) that, "..the
applicant's husband has filed a divorce petition(being HMA No.
148 of 2018 in Family Court, Patiala House Courts, New
Delhi/now transferred to Kolkata) and the Applicant, in an all
all-out effort to save her marriage is opposing such application.
For the well-being of her vary small children (both living with
the applicant)and in all all-out effort to save her marriage, the
applicant has requested the West Bengal Government to grant
consent for her Inter-Cadre transfer, which the applicant
believes that she is entitled to in terms of the instructions issued
by the DoPT. "
5. The reasons seeking for inter cadre transfer is clearly
disclosed by the petitioner in the aforesaid OA.
6. Two aspects are apparent from the above (i) the petitioner's
conduct as a conscientious and responsible parent and spouse is
clear, also the fact that she wants to save her marriage and (ii)
she wishes that her children must get simultaneous love and
affection of both their parents under one roof.
7. The learned counsel for the petitioner submits that the
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petitioner would be entitled to the identical relief as has been
granted by the Division Bench of this Court in two petitions - one
of which has been quoted hereinabove.
8. Ex facie the respondent is in contempt of the Court's
directions. However, the learned counsel for the respondent
seeks some time to obtain instructions and to file an affidavit on
or before the next date, let her do so.
9. At her request, renotify on 22.07.2021..."
15. The Court is of the view that the dismissal of the aforesaid OA was
not to be considered by the respondent. The Division Bench, in its order
dated 06.01.2021 had directed that the order of dismissal dated 01.12.2020
passed by the CAT, shall not come in the way of disposal of the petitioner's
second representation dated 10.08.2020 and it was to be decided
uninfluenced by the impugned order passed by the CAT.
16. In terms of the directions of the Division Bench, the respondent was
to decide the petitioner's said representation within eight weeks, "in
accordance with":
(i) the order dated 06.11.2019 passed in OA No. 3863/2018 by the CAT,
Principal Bench, New Delhi;
(ii) the order dated 04.12.2020 passed in OA No. 3579/2019 by the CAT,
Principal Bench, New; and
(iii) the judgment and order dated 03.02.2020 passed by this Court in
W.P.(C) No.13444/2020.
17. The order dated 06.11.2019 passed by the CAT in OA No. 3863/2018,
dealt with the issue of cadre transfer, which held, inter alia, as under:
"6. The question as to whether the request made by an officer
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for cadre transfer can be rejected by citing the reasons of
shortage of officers was dealt with by Guwahati Bench of this
Tribunal in OA Nos.2/2010 and 120/2010 through separate
orders dated 29.04.2010 and 02.08.2010, and OA No.218/2010
decided through order dated 29.10.2010 by Principal Bench of
this Tribunal. It was mentioned that the grounds such as the
shortage of staff cannot constitute the basis to reject the request
made by an officer for cadre transfer on the ground of marriage.
In the policy framed in the year 2009, the importance to be given
to the convenience of the woman officers was reiterated. This
was taken note of and the plea of State Government therein that
the officers can seek for transfer of the other spouse to the cadre
of that State was also not accepted. Though specific directions
were issued in those two OAs directing the issuance of letters of
"No Objection", we do not propose to do that. The matter has to
be left with the State Government, even by requiring them to keep
in view the purport of the policy guidelines as well as the law
laid down by this Tribunal.
7. We, therefore, dispose of the OA directing the 2nd
respondent to pass an order on the application submitted by the
applicant within six weeks from the date of receipt of copy of this
order, duly taking into account, the policy guidelines issued in
the year 2004 and 2009 as well as the law laid down by the
Guwahati Bench of this Tribunal in OA Nos.2/2010 & 120/2010,
and of the Principal Bench in OA No.218/2010. There shall be
no order as to costs."
18. The issue of inter-cadre transfer was again considered by the CAT,
Principal Bench in its order dated 04.12.2010 passed in OA No. 3579/2019,
which held, inter alia, as under:
"10. When the matter came up for final hearing, it was found
that the issue raised in the present OA is identical to that in the
aforesaid OA 218/2010 and also in OA 3863/2018 and that
judgments of this Tribunal have attained finality. In view
thereof, the time was granted to the learned counsel appearing
for the Respondent No.2 to take fresh instructions as to whether
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the Respondent No.2 may re-visit its decision in the matter.
However, no specific instructions could be received by the
learned counsel appearing for the Respondent No.2.
11. In view of the aforesaid facts, the issued arises as to
whether the request made by an All India Service Officer for
cadre transfer on the ground of marriage can be rejected by
citing the reasons of shortage of officers or it is open for
concerned State cadre to require such officer to ask his/her
spouse to seek cadre transfer. Both the issues are no more res
integra in view of the aforesaid judgments of this Tribunal in Dr.
Adarsh Singh (supra) and further Order/Judgment dated
6.11.2019 in Smt. Bhavna Gupta's case (supra) which has been
affirmed by the Hon'ble High Court of Delhi vide
Order/Judgment dated 3.2.2020.
12. Ordinarily, we would have remitted the matter to the
Respondent No.2 to re-visit their aforesaid decision dated
06.02.2020 and take a fresh decision in the matter, however, in
view of the fact that in spite of the issue already settled in a
number of cases, the Respondent No.2 has failed and neglected
to follow the Order/Judgment of this Tribunal upheld by the
Hon'ble High Court of Delhi (supra) and they have taken the
same defence as taken by them in previous litigations referred to
hereinabove, we are of the considered view that no useful
purpose would be served by remitting the matter to the
Respondent No.2 to re-visit their aforesaid decision dated
06.02.2020 in the matter.
13. In view of the aforesaid, the present OA is allowed with
direction to the Respondent No.2 to issue 'No Objection
Certificate'/consent for cadre transfer of the applicant from State
of West Bengal to State of Himachal Pradesh on the ground of
her marriage to Shri Anurag Chander, IAS (HP;2016) as
expeditiously as possible and in any case within four weeks' of
receipt of a copy of this Order."
19. A Division Bench of this Court in its order dated 03.02.2020 passed in
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W.P.(C) No. 13444/2019, Bhavna Gupta vs. The Union of India & Ors.,
had considered, inter alia, that the government policy, apropos inter-cadre
transfer cited before the court leaves no room for doubt that the same would
apply to the petitioner. The petitioner waited patiently for two years after
making her first representation to the State of West Bengal; only after
having received no response she approached the Tribunal, which directed
the State to consider her representation within six weeks. However, no
response was received. Subsequently, the Court directed the petitioner
therein to be relieved within two weeks from the date of receipt of a copy of
the said order.
20. Interestingly, as noted hereinabove, a Division Bench of this Court on
28.05.2021, in W.P.(C) No.4048/2021, State of West Bengal vs. Gandharva
Rathore & Ors., has held, that the issue that there is an extreme shortage of
officers, as a number of officers had sought transfer from the West Bengal
Cadre on account of their marriage to officers belonging to other State
cadres, is no longer res integra and the same stands decided against the said
State. It relied upon the decisions of Bhavna Gupta vs. The Union of India
& Ors., W.P.(C) No.13444/2019 as well as Ms.Loganayagi Divya V. vs.
Union of India & Ors., W.P.(C) No.3927/2020, in which the officers of the
IPS Cadre of the State of West Bengal stood relieved to join the IPS Cadre
in the State of Odisha in terms of the said orders.
21. A similar was the order passed in The State of West Bengal vs. Raj
Karan Nayyar & Anr., W.P.(C) No. 11966/2018, which had directed that
the respondent No.l be relieved within eight weeks and in case the officer
was not so relieved, she would be deemed to have been relieved by virtue of
the Court order.
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22. Therefore, the issue raised by the respondent about the extreme
shortage of the officers or their deployment for election duty was not an
issue to be examined by the State Government. The respondent could not
have avoided the clear directions of the Division Bench of this Court dated
06.01.2021 in W.P.(C) No.10874/2020 apropos deciding the petitioner's
representation dated 10.08.2020 within eight weeks in accordance with the
orders cited therein. Having not done so, the respondent has acted
contumaciously and in breach of the directions; the non-compliance amounts
to contempt of court.
23. Reference to the subsistence of the petitioner's marriage and the
transfer of a matrimonial case to the Kolkata jurisdiction is inelegant and
could have been avoided, as this has nothing to do with the decision making
process, as directed by the Division Bench of this Court.
24. In the circumstances, non-issuance of a relieving order is of no
consequence to the petitioner. As noted hereinabove, a corollary relieving
order can be issued by this Court in exercise of its powers under Article 215
of the Constitution of India read with the provisions of the Contempt of
Courts Act, 1971. In Kshiti Goswami's case (supra) and in of Dr. Subhash
Chandra Pratihar vs. Ms. Veena Chakraborty, 1994 SCC OnLine
CAL226, it has been held, inter alia that:
"24. In view of the contempt alleged, the Petitioner had prayed
the Court, during the hearing, for passing appropriate direction
upon the Contemner for compliance with the aforesaid relevant
order dated 10th January, 1992 and for passing such necessary
penal orders against her, as the Court may deem fit and proper.
A question naturally arises as to whether in Contempt
Proceedings the Contemner could only be punished or let off,
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and whether there is any other way out. The point may somewhat
differently be posed as to whether any consequential relief could
be given on a Contempt Application. A Division Bench of this
Court in Dulal Chandra Bhar v. Sukumar Banerjee, AIR 1958
Cal 474 : (1958 Cri LJ. 1162), has held that in a civil contempt
when the party in whose interest the order was made moved the
Court for action to be taken in contempt against the Contemner
with a view to enforcement of his right, the proceeding is only a
form of execution. Another Division Bench of this Court in Saibal
Kumar Gupta v. B.K. Sen, AIR 1959 Cal 106 : (1959 Cri U 172),
has held that when an order made for the benefit of a party is
disregarded or violated and the Court enforces the order by
punishing the delinquent for contempt, it is said that such
proceedings is a form of execution. The Supreme Court in Md.
Idris v. Rustam Jehangir Bapuji, (1984) 4 SCC 216 : AIR 1984
SC 1826 : (1985 Cri U 353), has held that a single Judge of the
High Court was justified in giving appropriate direction in
addition to punishing the party for contempt of Court. The High
Court can, accordingly, pass direction on Contempt Application
for implementation of its order. The Supreme Court in Noorali
Babul Thanewaia v. Sh. K.M.M. Setty, (1990) 1 SCC 259 : AIR
1990 SC 464 : (1990 Cri U 316), has clearly held that in a
Contempt Application arising out of a civil proceeding the Court
is competent to issue necessary further and consequential
direction for enforcing the order. The aforesaid decisions' had
been followed by a learned Single Judge of this Court in
Hindustan Lever Sramik Karmachari Congress v. Ashis
Chakraborty, (1991) 1 Cal U 502 : (1991 Cri U 2890). There is
nothing to depart from the aforesaid decisions. That being so,
there could clearly be no mistaking that in a Contempt
Application the Court is competent to issue necessary further and
consequential directions for enforcing its order. In the nature of
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the matter, I, accordingly, direct the Contemner Mrs. Leena
Chakraborty to comply with the orders dated 25th March, 1991
and 10th January, 1992 passed in the relevant Writ Application,
being C.O. No. 3386 (W) of 1991, within two months from this
date. I further direct her to cancel or withdraw the order of
suspension dated 19th August, 1994 passed on the Petitioner to
give effect to the aforesaid orders passed by the Court on the
said Writ Application. This order shall not, however, debar the
Contemner to initiate Departmental Proceedings against the
Petitioner hereafter on specific article/s of charge, if there be
any, and from suspending him during the pendency of the
Departmental Proceedings, if so required for the purpose of
proceeding with the same. But the Petitioner shall not be
suspended without initiating any Departmental Proceedings
against him on specific article/s of charge, and before complying
with the aforesaid orders of this Court dated 25th March, 1991
and 10th January, 1992. If the Petitioner feels aggrieved against
any such Departmental Proceedings; it would also be open to
him to seek appropriate redress before the appropriate forum, as
the law permits."
25. In view of the preceding discussion, the petitioner is entitled to
consequential orders, as not doing so, will only further the act of contempt
by the respondent. The relief directed by the Division Bench to be granted
to petitioner is evident. Therefore, all orders passed by the State of West
Bengal, denying the relieving order are of no consequence, and are set aside.
Accordingly, the petitioner shall stand relieved within one week from the
IAS Cadre of the State of West Bengal. No further orders are required to be
passed by the said State in this regard. The DoPT shall consider/treat this
order as the relieving order of the petitioner to enable her to join her post in
the AGMUT Cadre in Delhi.
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26. Since, at the first instance, the incumbent respondent has already
tendered his unconditional apology for any unintentional breach of the
directions of this Court, the apology is accepted. No further order is
required. The petition is disposed-off in terms of the above.
NAJMI WAZIRI, J.
October 12, 2021/rd/sb
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